Sunday, February 17, 2013

Transgender Parents -- Then, Now, and the Future

A trial court concludes it is in
the best interests of four daughters to change custody from their mother to
their father because their mother was “going through a transsexual change” from
female to male.The mother had changed
her name to Mark, and, after the father petitioned for the custody change, Mark
married a woman.Reversing, the appeals
court quotes the statutory requirement that “the court shall not
consider conduct of a proposed custodian that does not affect his relationship
with the child," and finds no adverse impact on the mother’s relationship
with the children or on their emotional development.

A trial court terminates the parental rights
of a father after he undergoes sex reassignment surgery and becomes a
woman.Affirming, the state supreme
court finds that “Suzanne, in a very real sense, has terminated her own
parental rights as a father.It was
strictly Tim Daly's choice to discard his fatherhood and assume the role of a
female who could never be either mother or sister to his daughter.”

Contrary to the recommendation of the
guardian ad litem, and in spite of finding that the father was the more
nurturing parent, a trial court awards primary custody of two children to their
mother rather than their father, who was transitioning to become a woman. The
trial court reasons that "[Robbie] has indicated she will be undergoing
sexual reassignment surgery sometime in the very near future. [The] surgery may
be everything she has hoped for, or it may be disastrous. No one knows what is
ahead, and the impact of gender reassignment surgery on the children is
unknown."Affirming, the appeals
court finds that the trial court properly “focused on the children's need for ‘environmental
and parental stability’."

The
above snapshots are from three cases, one decided in 1973, one in 1986, and one
in 2007.Which case do you imagine goes
with which year?Take a moment and think
about that before you keep reading.

The cases
are listed in chronological order.The
unequivocal win for the transgender parent – indeed the only unequivocal win for a transgender parent in any reported
appellate decision to date – came in Colorado, in 1973, in Christian v. Randall.[1]The second case is from Nevada in
1986,[2]
and the third from Washington in 2007.[3]

These results
are surprising only if one assumes that LGBT parents once faced virtually
insurmountable barriers to retaining custody of their children after a divorce,
and that those barriers have eased, or even disappeared, in recent years.It’s the mistake of thinking that Lawrence v. Texas is more important to
the custody rights of LGBT parents than Roe
v. Wade.

Actually,
neither of these cases is directly relevant to approval of LGBT parents raising
children.No court has ever decided in
favor of LGBT parenting on federal constitutional grounds, including arguments
derived from Lawrence.But the era of Roe v. Wade, decided the same year as Christian v. Randall, was an era of possibility whose dimensions
have been largely ignored in the history of LGBT rights.

That era of
possibility has a name:the sexual
revolution.

In 1973,
“make love, not war” was a universally known slogan, capturing both popular
opposition to the war in Vietnam and the cultural changes that made openly
conducted sex outside of marriage increasingly widespread and acceptable.“Open marriages” were documented more with interest
than condemnation. The feminist movement championed a woman’s right to control
her own body, demanding, among other things, the end to criminal abortion laws
that Roe in part accomplished.That movement also insisted on the equal
employment opportunities promised in the 1964 Civil Rights Act and the end to
patriarchal marriage, in public laws and private homes.

Roe is only one of the important cases from this era.The same year, 1973,the Supreme Court found it unconstitutional in USDA v. Moreno to deny food stamps to
hippie communes, a widely recognized locus for acting out the sexual
revolution; there were four votes that year, in Frontiero v. Richardson, for requiring classifications based on sex
to withstand strict scrutiny; the year before the Court had ruled in Eisenstadt v. Baird that single women
could not be denied access to birth control.

The movement
for gay rights and liberation that grew out of Stonewall in 1969 could take
advantage of – as well as contribute to – the greater permissiveness of the
sexual revolution.Its demands also
dovetailed with the feminist movement’s demands for both equality and freedom.Add in the increased availability of no fault
divorce, which began in California in 1969, and the times were ripe for
lesbians and gay men who had married for conventional respectability to leave
those marriages and come out.Custody
disputes commonly ensued.

Many parents
did lose custody of their children after coming out, but not all did.Just as the sexual revolution and feminist
calls for change had an impact on Supreme Court Justices, so they affected
state trial and appellate judges.It is
in that climate that the Colorado appeals court ruled that being transgender
was not sufficient basis to lose custody.

The sexual
revolution ended.The backlash
began.The Equal Rights Amendment
failed.Sex was never declared a suspect
classification.Future Supreme Courts
chipped away at Roe.Demands for equality and freedom were met
head on with arguments for morality and “traditional values.” Bowers v. Hardwick was proof of those
arguments’ success.Daly and Bowers were
decided in the same year.

In the
mid-1990’s, the arguments shifted, relying more on social order than morality.Opponents claimed life-long heterosexual
marriage as the optimal structure within which to raise children and blamed other
family forms for all social and economic problems.Those arguments persist today, continuing to
deflect attention from the wealth inequality and racism that bear primary
responsibility for poverty, inadequate public education, health disparities,
and other blights on our democracy.

In the
aggregate, lesbian and gay parents raise children in a more supportive legal
and cultural environment than that which existed in previous decades.But virulent pockets of resistance remain.For transgender parents, there is overwhelming
resistance.The Magnuson decision, from generally LGBT-friendly Washington state,
is an example of that.

I’m
optimistic that outcomes for transgender parents in custody disputes will
improve.But I was optimistic in the
mid-1970’s also, imagining that Roe,
Eisenstadt, Moreno, and the momentum of the sexual revolution and feminism,
all pointed towards ever-increasing freedom and support for lesbian, gay,
bisexual, and transgender people, our relationships and our families.I’m humbler now about my predictions.

This entry is a repost from Balkinization, which posted submissions from all the speakers at the conference held at UCLA last month, Liberty/Equality: The View from Roe's 40th and Lawrence's 10th Anniversaries. Video of the speakers is available at the William Institute website here.

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About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.